PhD defence H. (Hongwei) Dang

Dissertation in short:

The collision between investment protection and the promotion of environmental and social interests has frequently arisen in Investor-State arbitration cases over the years. The increasing number of investment arbitration cases in which investors challenge governmental measures taken for public policy objectives such as the protection of the environment or public health (e.g., punishing the investors for their non-compliance with the environmental legislation, or introducing new environmental or public health regulations) has raised disquieting questions with respect to whether the current international investment law regime impedes sustainable development. Mounting concerns have been expressed over whether the current investment law regime is capable of ensuring that States are left with sufficient policy space for pursuing sustainable development objectives and that foreign investors are held accountable for the environmental and social consequences of their conduct.

Against this backdrop, this research aims to answer this central question: what are the key areas to be improved in investment treaties and the investment dispute settlement regime to support and promote sustainable development and how to make the improvement? To answer the research question, this thesis conducted an in-depth analysis of the sustainable development provisions (SDPs) contained in international investment agreements (IIAs) and a thorough case study investigating arbitral tribunals’ approaches to sustainable development-related investment disputes. More specifically, IIAs, as the applicable law of investment treaty arbitration, are examined to identify whether the treaty texts provide sufficient bases for safeguarding the State’s policy space and holding investors liable. The relevant investment arbitration cases are examined to analyse whether the State’s right to regulate for sustainable development objectives has been taken into account by arbitral tribunals and how investors’ behaviour has been considered in affording protection and adjudicating counterclaims.